Entries categorized under “Electronic Discovery”

"If it really costs millions to do that [e-discovery], then you're going to drive out of the litigation system a lot of people who ought to be there." This quote by Supreme Court Justice Stephen Breyer cuts to the heart of current issues surrounding eDiscovery. A recent DCIG blog highlighted how out of control litigation costs have become and have left companies with hard decisions on whether it is best to settle cases based solely on the cost of eDiscovery or attempt to litigate. But as companies face unprecedented economic pressure, a key question comes to mind, "Are these costs driving risky data retention strategies such as destroying all of your data?" (read more)

"There is no truth if you cannot find relevant evidence and, unless companies get their eDiscovery act together, eDiscovery is about to destroy the American System of Justice as we know it." That statement summarizes the opening remarks that Ralph Losey, the noted eDiscovery attorney of FloridaLawFirm.com, made during a recent presentation. From there, he went on to explain why he believes most organizations - public or private, large or small - have no viable strategy for eDiscovery and why a reactive approach to eDiscovery is putting the viability of the American System of Justice as we know it at risk. (read more)

Regardless of how one approaches an eDiscovery project, having processes and tools in place to help guide you through the EDRM (electronic discovery reference model) are critical elements that influence how effective an eDiscovery project will be. Data retention policies, access to outside resources, and technology are all critical components to have in place in order to successfully complete an eDiscovery. Yet an equally important question that organizations need to answer is how reliable is the information they discovered in their eDiscovery? Or, better put, how do they move from a faith-based approach of eDiscovery where they assume they have all of the information that they need to a fact-based approach where they have confidence that all of is the information found during the eDiscovery is accurate and defensible in court? (read more)

There are many factors that guide a company's approach to eDiscovery. But knowing which ones matter - and which ones don't - continue to be a source of frustration as companies grapple with the Federal Rules of Civil Procedure (FRCP) and how best to respond to an eDiscovery request. Two areas of immediate importance that plague companies are how best to take responsibility for the results of an eDiscovery request and then control the costs associated with the eDiscovery. And without any easy answers and growing costs for outsourced eDiscovery, more companies are examining at the merits and cost-savings of an in-place eDiscovery (read more)

Recently Kelly Polanski (another DCIG analyst) and I had a rather lengthy discussion about the value of keeping archive and backup data on disk versus tape long term. We were both in agreement that using disk in some form as an initial backup target makes sense in most environments but as we started to debate the merits of keeping data on disk versus tape long term, the issue can get more cloudy. While DCIG has previously argued that eDiscovery is becoming a more compelling reason to keep archive and/or backup data on disk long term, the concerns we had centered on the fact that some disk-based archival and backup storage systems can become as problematic as tape. (read more)

A current patent infringement lawsuit has provided a great reminder of why email retention policies and procedures as well as archiving technology are invaluable in today's eDiscovery environment. While discussing policies and procedures can be a mind numbingly boring exercise, this case provided some great reminders as to why they are important in setting the groundwork for a robust and defensible eDiscovery process. (read more)

Understanding legal hold and how to best approach this difficult topic can lead to a failure of the electronic discovery process for a company and put a company at considerable risk if it does not retain critical documents needed to answer an FRCP request. (read more)

While we may think of email applications as a communication tool, the formal definition of what constitutes an individual email is changing. Regardless of an email's folder location, intent, or status, email is a vital piece of corporate electronic information and no different than any other document. Email is now much more than just a communication mechanism but a legal document of record that can be used to an organization's advantage. (read more)

In 1978 the Presidential Records Act (PRA) was passed which fundamentally changed the landscape of Presidential records by moving them from a classification of personal information to the public domain. The PRA is explicit in describing that retention of records created by the President of the United States as well as the Vice President is the responsibility of the President. The PRA guides the President in how records should be handled and guides the steps in the proper destruction of records and how they are retained to comply with this federal statute. (read more)

Matt Kesner, the CTO of Fenwick and West and who runs the computer forensics group within that firm, even goes so far to say in a recent Symantec eDiscovery virtual round table that organizations who use social networking have lost control and it can seem sort of hopeless to get your arms around this new form of electronically stored content. But what is happening in response to this new wave of social networking is that some organizations are making employees responsible for the content they create on these Web 2.0 sites and instructing them to act as their own records managers. (read more)

A just released March 2009 Nielsen Company report, Global Faces and Networked Places, makes some startling observations about the rapid adoption of social networking such as blogs, social media sites (Facebook), Twitter and wikis among Internet users. While many may intuitively suspect that the adoption rate of these forms of social networking is accelerating, this report removes all doubt. It highlights that two-thirds of the world's Internet population now utilize social media sites, traffic to these sites is growing at 3x the rate of other Internet traffic and people now spend 10% of all Internet time on social networking sites. (read more)

A recent virtual eDiscovery roundtable that I participated in highlighted the difficulties that companies are having in getting their arms around the proliferation of electronically stored information (ESI) in their organization. This is especially true when one considers the growth of social media and how it can negatively impact them going forward. One attorney participating in the roundtable even went so far to say that, "We have lost control in regards to blogs, wikis and newer forms of social media." Thankfully the news is a little bit better in regards to the management of older, more mature forms of social media such as email but challenges still remain. (read more)

It isn't just businesses that are hurting in this down economy. As companies cut back it is having repercussions everywhere and local, state and federal government are not exempted from these cutbacks even as their requirements also increase. Case in point, a recent case decision handed down determined that the SEC must comply with the Federal Rules of Civil Procedure (FRCP) just like "any other litigant" that puts the same burdens of eDiscovery and legal holds on governmental agencies that previously only affected private organizations. (read more)

"Scalability is one of the biggest pitfalls that managed solution providers need to watch out for." That statement by ESG's Senior Channel Analyst, Paul Myerson, in a recent SearchITChannel podcast highlights one of the new difficulties that today's solutions providers are encountering, especially as they begin to implement solutions such as archiving and eDiscovery in all size customer accounts. Even though each customer's environment is different, customers still expect their reseller to quickly and cost-effectively deploy these increasingly complex solutions and then support them on an on-going basis. Yet finding a solution provider that has the skill sets and can cost-effectively scale to meet these new customer demands is still easier said than done. (read more)

On January 13th, 2009, a ruling in the S.E.C. v. Collins & Aikman Corp was handed down in what is sure to become a landmark ruling. What makes this an important ruling? Judge Shira A. Scheindlin ruled that the SEC had to abide by the Federal Rules of Civil Procedure (FRCP) just "like any other litigant." This could have ramifications across government entities as the FRCP increasingly touches federal, state and local governments. It is already a well documented fact that the FRCP is changing how private industry manages its data but this ruling sets out numerous areas in which the SEC failed in its internal eDiscovery processes and rightly was held accountable. (read more)

In the last week I had an extensive conversation with an investment individual about what the future holds for email archiving and management software. On one hand, he astutely and accurately observed that the market is already saturated with products and that consolidation should occur. But when one looks beyond the general classifications of "email archiving" or "email management", one quickly detects that many of these products are designed to solve specific problems in a specific market segment. As a result, email consolidation is neither as simple nor as straightforward as one might imagine and that there is still plenty of room for growth and innovation in this space. (read more)

Over the last few months DCIG has spent fair amount of time researching and documenting specific reasons why tape will not die. Green IT is the one reason we most often hear cited for retaining tape, though new disk-based deduplication and replication technologies coupled with new disk storage system designs that are based on grid storage architectures can offset some of those concerns. So before organizations think that after 30, 90 or 180 days that they should immediately move their archival and backup data, deduplicated or otherwise, from disk to tape just to save money, there are certain intangible savings from an eDiscovery perspective that keeping data on disk provides that are not always feasible on tape. (read more)

Data protection is top of mind with more enterprise organizations today as they look to redesign data protection. Rapidly changing economic forces, new technologies and steadily growing volumes of data are prompting enterprises to rethink how they can best protect, manage and recover their data by leveraging these new technologies without introducing new people or extraordinary costs to accomplish these objectives. To get Symantec's take on these new challenges facing organizations, DCIG lead analyst, Jerome Wendt, recently met with Deepak Mohan, Symantec's senior vice president of the Data Protection Group, to discuss these topics. (read more)

A recent DCIG blog entry called into question the value of Bear Stearns selection of Orchestria and its inability to detect the alleged illegal activities of two of its Asset Management portfolio managers. More specifically, it asked why Orchestria did not detect the illegal activities of these individuals and why Bear Stearns did not configure it to monitor for these activities in the first place. The blog posting prompted a comment and phone call from Alan Morley, one of the individuals formerly responsible for implementing and managing Orchestria at Bear Stearns and why monitoring, detecting and preventing this activity is not as easy as it sounds. (read more)

Recently, I had a passing conversation with an attorney about FRCP and as we were talking, he kept bringing up areas that concerned him. So I asked him, "What is your biggest eDiscovery concern?" Without hesitation he replied, "Having a judge issue 'Death Instructions'." (read more)

All of these areas have had a large impact in leading up to the current crisis and will almost certainly result in new regulations but what role will technology play in complying with and/or enforcing these new rules? At this time, that is a still difficult question to answer as the 111th Congress is providing little insight into what new rules it will pass. So often the best thing to do in times like this is to take a step back and look at the recent past in order to gain some insight as to what the near future may hold. (read more)

Responding to an eDiscovery request is definitely not a task that most enterprise organizations eagerly anticipate. But the pain of an eDiscovery is often a result of poorly written or non-existent internal policies and procedures. An organization that takes the time to put internal policies and procedures in place may not only avoid this scenario but also lower its overall cost of doing an eDiscovery. (read more)

eDiscovery is a focus in numerous DCIG blog entries. DCIG analysts have previously examined what laws are prompting the need for companies to perform eDiscoveries, keys to selecting the right eDiscovery solution and why recent Wall Street scandals foretell the need for companies to prepare for expanded eDiscovery requirements going forward as more government regulations seem almost certain to emerge. But an eDiscovery request is not a task that a company necessarily needs to dread. Rather, by establishing and putting in place best practices and procedures now, an organization can take much of the uncertainty out of an eDiscovery request and even use the looming threat of eDiscovery requests as motivation to lower an organization's cost of performing eDiscoveries. (read more)

Recently I had an opportunity to attend an interesting presentation by John Mallery of BKD, LLP that was given to a group of IT industry professionals regarding how to protect trade secrets and the use of forensics to identify wrongdoing. A large part of his speech focused on eDiscovery and FRCP and how companies must understand the importance of having an eDiscovery strategy. But, the part that really struck home with me was when the presenter asked the crowd of around 60 or so participants who knew what eDiscovery and FRCP was. Stunningly, only three people, including myself, raised their hands. Now this is by no means a scientific measurement of companies and their knowledge of eDiscovery, but it was surprising to me none the less and, unfortunately, it is probably closer to reality than most of us would like to admit. (read more)

It is sometimes argued that media such as optical and tape are better options for archiving data when compared to disk because they have a longer shelf life, up to 100 years in the case of some optical media. Further, optical and tape vendors also argue that they are "greener" than disk because they do not have the same heating, cooling and power requirements that disk may have when used for archive. (read more)